Local, county, state, and federal governmental agencies and entities are in most cases protected against lawsuits by a legal principle called “sovereign immunity.” For example, if your child is injured attending an Illinois public school, a personal injury claim must demonstrate that there was willful and wanton and/or “reckless behavior” on the part of one or more school employees. If you’re injured in traffic because the Chicago Transit Authority was negligent, a notice of intent to sue must be filed within six months of the injury and a lawsuit must follow within a year. A number of criteria must be satisfied before a lawsuit can be filed against any government agency in Illinois.
But what about the federal government? If you slip on a wet floor at the post office and you are injured, if an FBI agent crashes into your automobile, or if you’re the victim of medical malpractice at a Veterans Administration hospital, what is your legal recourse? If you are injured because one or more employees of the federal government were negligent, in most cases your only recourse is to bring a lawsuit under the Federal Tort Claims Act (FTCA). However, if you choose to sue the feds under the FTCA, you’ll have to overcome a number of legal obstacles, and your claim may be restricted by a long and somewhat perplexing list of legal limitations.
WHAT IS THE FEDERAL TORT CLAIMS ACT (FTCA)?
The doctrine of sovereign immunity is historical. Under monarchies, the sovereign – that is, the king or queen – was the authority which created the courts, so the sovereign could not be bound by the courts. The effect was that no one was allowed to sue the king or queen. Sovereign immunity has continued into the 21st century as the legal principle that you cannot sue the government – unless the government allows you to. The Federal Tort Claims Act allows only particular lawsuits against federal employees acting within the “scope” of their employment.
If someone is injured because of the negligence of one or more federal employees, before a personal injury claim can be filed, you’ll have to find out if your claim is allowed under the FTCA. If it’s not, you probably will not be able to sue. In the greater Chicago area, let an experienced Chicago personal injury attorney help you determine if you can file a personal injury claim against a federal employee or agency. You may have other options that your attorney can explain as well.
WHEN IS A LAWSUIT ALLOWED BY THE FTCA?
Frankly, the limitations placed on lawsuits against the federal government are too numerous and extensive to list here, but you may find these general guidelines helpful. Only federal employees can be sued under the FTCA. Independent contractors working for the federal government cannot be sued under the FTCA, but you may have other options if your lawsuit targets a contractor rather than the federal government itself.
Generally speaking, only negligence claims are allowed. Acts of intentional misconduct that cause injuries are handled differently, and if you are the victim of the intentional misconduct of a federal employee, your attorney can explain your other options. Any claim made against a federal employee or federal agency must also be allowed by and based on the laws of the state where the negligence and injury took place.
In spite of the multiple limits on FTCA lawsuits, the government of the United States nevertheless pays out millions every year to compensate injury victims with FTCA claims. If you’ve been injured by the negligence one or more federal employees, let an experienced Chicago personal injury attorney review the details and determine if your claim can be pursued. If you’ve been injured, and you need to be compensated, it’s well worth the effort.
If your attorney determines that your injury claim is valid under the FTCA, then a number of steps must be followed, and you’ll also have to meet some hard, non-negotiable deadlines. In a “regular” personal injury lawsuit, you take the case directly to court. But if you sue under the FTCA, the first step is filing a notice – called an “administrative claim” – with the federal agency responsible for the purported negligence. Use the government’s standard claim form, Standard Form 95 (or “SF 95”), and have your attorney complete the form or review it after you’ve completed it.
HOW DOES THE ADMINISTRATIVE CLAIM PROCESS WORK?
If you sue the federal government for a personal injury, you generally must file the administrative claim with the appropriate federal agency within two years of the date you are injured. Don’t wait two years. In fact, see an attorney and have the administrative claim filed as quickly as possible after the injury. Your administrative claim should include both the facts and details regarding your injury and the precise amount of compensation you are seeking. Include enough facts so that the agency can conduct its own investigation. This is another good reason to have the claim reviewed by an attorney before submitting it.
Federal agencies normally have six months to respond to an administrative claim. Sometimes, an agency may admit the validity of the claim and compensate the claimant without any further action and without any need to go to court. When a federal agency rejects an administrative claim, the claimant then has six months (from the date the decision is mailed to the claimant) to file a formal lawsuit. Don’t wait six months. Have your attorney file the lawsuit at once if your administrative claim is denied. If the federal agency does not make a ruling within six months, you may continue awaiting the agency’s decision, or you may file the lawsuit at that time.
You cannot sue for more than you specified in your administrative claim unless you have new evidence that increases the value of your claim, and you may not seek punitive damages from the federal government. You must file the lawsuit in the United States District Court either in the district where you reside or in the district where you were injured. After the lawsuit is filed in federal court, the process is comparable to a “regular” personal injury lawsuit. Attorneys for both sides may attempt to negotiate a settlement before and even during the trial.
Even for a federal law, the Federal Tort Claims Act is extensively complicated, so don’t even think about suing the federal government and acting as your own attorney. Keep in mind that most personal injury attorneys work on a contingent fee basis, so if an attorney accepts your case and sues the federal government on your behalf, that attorney is likely convinced that your claim will prevail.